French National Library Privatizes Public Domain Materials

from the deep-betrayal dept

Copyright is sometimes described as a bargain between two parties: creators and their public. In return for receiving a government-backed monopoly on making copies, creators promise to place their works in the public domain at the end of the copyright term. The problem with that narrative is that time and again, the public is cheated out of what it is due.

Last week the Bibliothèque nationale de France (BnF) concluded two new agreements with private companies to digitize over 70.000 old books, 200.000 sound recordings and other documents belonging (either partially or as a whole) to the public domain. While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF.

Communia points out:

The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

As such, these partnerships constitute a commodification of the public domain by contractual means.

These kind of initiatives are typically justified on the grounds that there's no other way to digitize books and recordings. But that's clearly not true: money could be taken from other projects to pay for such work. It's really a question of priorities. These "public-private" partnerships come about because institutions like the Bibliothèque nationale de France have given up fighting for the public domain, despite being its guardians, and have acquiesced in its privatization.

It's a sad sign of the extent to which once-great libraries and galleries have been assimilated by the copyright industry and its culture of owning rather than sharing that they can't see why their complicity in this kind of enclosure of the knowledge commons is a deep betrayal of their origins and primary mission.

Reader Comments

I may be missing the point

It sounds like the exclusive agreement is only concerning the newly-created digital copies of the works (which could be considered derivative works, depending on how you argue it) and not the original text of the books in question. It sounds to me like the source material is still in the public domain, so anyone can go and buy/sell/scan one of these books on their own if they want to since it's not under copyright. Unless the national library goes after people who distribute their own scanned copies, what's the problem here?

Re: I may be missing the point

It sounds like the exclusive agreement is only concerning the newly-created digital copies of the works (which could be considered derivative works, depending on how you argue it) and not the original text of the books in question. It sounds to me like the source material is still in the public domain, so anyone can go and buy/sell/scan one of these books on their own if they want to since it's not under copyright.

There are differences of opinion on this subject. In the US, the case law is explicit that scans of public domain works are in the public domain themselves as well:

Re: Re: I may be missing the point

The question that comes to mind is what exactly was licensed (for lack of a better word). If these works are no longer under copyright, there are no rights to transfer to the private company. In other words, how can BnF sell what it doesn't have?

Re: Re: Re: Re: I may be missing the point

Re: Re: Re: Re: Re: I may be missing the point

No that is the way the public domain works. Everyone can use it. If I want, I can take a book that is in the public domain, reprint it and offer it for sale if I want. Nothing wrong with that. But so can anyone else.

Re: Re: Re: Re: Re: Re: I may be missing the point

I think you hit the nail on the head

What the private companies did is making a private contract to digitize public domain works (which process cost something to the companies). This contract forbid the library the online distribution of the works, which is similar to copyright, but not the same, since depends on a mutually signed contract.

You are still free to take a book, digitize it on your own cost, and publish it for free, just for the lulz

That's another good question is that why the library got into a contract with conditions like this.

Re: Re: Re: Re: I may be missing the point

"The issue is the rule that it can't be made available online by any other means."

That is what I was referring to - the right to exclude other uses of the work. The basis of that kind of right is copyright. So without copyright, how can they transfer the right to exclude? I don't understand how it was a valid transaction.

Re: Re: Re: Re: Re: Re: I may be missing the point

"I think you're wrong: the source of the restriction is the contract between the library and the company doing the digitization."

So then what stops you just from copying the digital copy made by the company? There's no privity/contractual obligation between you and either the BnF or the company, (contracts can't create obligations for persons who aren't parties to them), so you're not in breach of their agreement.

Conceivably, they could have an EULA to access the digitized documents, but even if that were effective for people directly accessing the documents, anyone they provide the copies to would not be subject to its terms.

Re: Re: Re: I may be missing the point

They could probably demand that other digital copies be taken down. As these would most likely have been produced by an individual, they probably could not fight the issue to prove independent creation.

Re: I may be missing the point

You are. If that we're the case, then it should be perfectly legal to cut/paste, scrape, or mine the documents for the text (and any other images published with the original), and create your own digital work based solely on the public domain content of the file. Based on the "exclusive contract," that can hardly be the idea, and what would be the point?

Re: Re: Why?

Homer wrote the Iliad and Odyssey about 2,400 years ago, and that was about 400 years after the events being described. Those are only two of various works that have come down to use from the Greeks.
Copyright, by preventing the reuse, and copying of culture to keep it refreshed will cause works to be forgotten. Some films and music has already rotted away in company vaults.

Re:

In France, It all started with a Statue...

You may remember that the Statue of Liberty was given to the US as a gift. Now today, it's a national park, and frequently used in corporate symbolism. In fact, an insurance company uses it as it's logo.

It used to be a work of art to appreciate and enjoy as a gift, that was given to the people of the US to take care of.

But it was closed 5+ years, and opened up for a period of two weeks before Hurricane Sandy hit. Now it's closed again.

There are somethings that might be haunted and cursed, and one of those things seems to be that France Statue Gift. Besides being the corporate logo of an insurance company whose company policy is responsbility and golf games requiring a fleet of 5 jet aircraft (as reported in the Boston Globe Newspaper- See the recent article titled "Your Premiums, His Premium Office" I believe France has the right to be a little concerned about how gifts and items in the public domain are taken care of.

it makes no difference how outraged people are or what is said about this type of 'deal' it is going to continue as long as the public or bodies representing the public are excluded from any and all negotiations. when there is money involved, the side with the most, or the side that has dished out the most in bribes, will always win. all of this type of behaviour can be traced back to the source, which was when the entertainment industries first became so incensed about maintaining an old business model, rather than adapting to the modern era. now every fucker is at it!

Crowdsourcing

What would be wrong with the French setting up a cultural archive, and letting the public do the digitisation. That is a French Gutenberg project?
The main problem seems to providing the servers for the archive, which could be based at a university, which also be the best environment for dealing with tricky digitisation problems. Solving such a problem is an expense for a private company, but a valuable research project for a university.

Amazingly Disgusting

Here in the states, Libraries seem to be often at the forefront of trying to get information out in the open. Many academics and librarians are people who tend to lean towards the side of less stringent copyright.

Isn't it already commonplace?

I live in Wyoming (a backwoods place by most standards), yet even here that's the norm. I publish an annual calendar filled with historical photos from our area (it's a freebie I give to our customers), but in order to acquire the photos, I have to sign a contract with the Wyoming State Archives in Cheyenne, where they license my use of the pictures. The pictures are always from 1940 or earlier, but as soon as they get a hold of them, they bury them under a contract. If you don't sign the contract, you can't use the pictures. The contract states that you can only use the pictures once, and you have to get your use approved by them before they will allow it. They also charge $8 per use per picture. It sucks, but it's just how it is, and I don't think it's news; they've been doing this for years.
Furthermore, if you want a copy of our state laws, or even our city laws, you have to purchase a copy from the 1 approved publisher. You can find most of them online, but several laws are redacted (even in our city of 8,000 people), so that you have to buy the book to find out what they are. It's wrong, but it's how they do it. Isn't it how all the government entities do it?

but, but, but...

As noted in several comments, something just doesn't add up in this story. Sure, the library could digitize and then exclusively offer or sell those digitizations. But it just doesn't seem like there's any law, in France or elsewhere, that would prevent any other entity from digitizing another copy of the book(s) or other form of media and then offering that version to the public for free or for sale.

Re: but, but, but...

Except the BnF is the depository/conservator of the books, who are, for some of them, only in limited supply, and for some only a single remaining copy. The BnF can (and most probably will) restrict access to it, with the rightful excuse of preservation.

Seriously, it's not that hard to digitize a sound recording now is it? All you need is a good microphone to convert it, then put the FLAC on tpb and bam! digitized and distributed all for the price of a good microphone and audio editing program.